LAMIN SUWAREH, Plaintiff-Appellant, v. CHINELO NWANKWO, Defendant-Appellee.
CASE NO. CA2017-12-174
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
9/17/2018
[Cite as Suwareh v. Nwankwo, 2018-Ohio-3737.]
HENDRICKSON, J.
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS DIVISION Case No. DR14080831. Thomas G. Eagle, 3400 N. State Route 741, Lebanon, Ohio 45036, for plaintiff-appellant. Patricia A. Baas, 1831 West Galbraith Road, Cincinnati, Ohio 45239, for defendant-appellee.
HENDRICKSON, J.
{¶ 1} Plaintiff-appellant, Lamin Suwareh (“Father“), appeals from a decision of the Butler County Court of Common Pleas, Domestic Relations Division, that modified the terms of the shared parenting plan he and defendant-appellee, Chinelo Nwankwo (“Mother“), entered intо at the time of their April 2015 divorce. For the reasons set forth below, we affirm in part, reverse in part, and remand the matter for further proceedings.
{¶ 2} At the time of their divorce, Mother and Father had two minor sons, A.A.S, born
{¶ 3} The shared parenting plan further provided that the parties would alternate holidays, with Mother being given preference on all Christian holidays and Father being given preference on all Muslim holidays. If a parent intended to relocate outside of Butler County, the shared parenting plan required the parent to provide at least 60-days advance notice to the other parent and to the court, and further provided that “[i]f either parent believes the relocation requires a change in the allocation of parenting time, it is the responsibility of that parent to file a motion to review the allocation of parenting time.”
{¶ 4} The shared parenting plan alsо provided that “[b]oth parents recognize that the children legally may attend school in either parent‘s school system.” The parties agreed to consult with one another as to the appropriate school placement for the children, and if unable to agree by March 30th of the year preceding the academic year in question, agreed to seek mediation to resolve the issue before any motions were filed with the domestic relations court.
{¶ 5} Fаther was ordered to pay child support to Mother in an amount exceeding $800 per child per month and to provide health insurance for the children. Uncovered health
{¶ 6} Following the parties’ divorce, multiple motions were filed. As pertinent to the present appeal, in July 2016 the trial court adopted a magistrate‘s June 29, 2016 Decision and Judgment which modified Father‘s monthly child support obligation to $586.65 per child and clarified the parties’ parenting time during the holidays. The parties were ordered to follow the court‘s standard parenting schedule with respect to holidays, “with modifications for religious holidays.” Mother was given parenting time with the children on Christmas Eve, Christmas Day, Good Friday, and Easter Sunday. Father was given “parenting time with the children on major Muslim holidays and feasts he celebrates.” Father was instructed to “notify Mother as far in advance as he is able the dates upon which the holidays are to be celebrated each year.” The June 29, 2016 decision further ordered Mother to reimburse Father $580.32 for medical expenses associated with the birth of their youngest son.
{¶ 7} On November 18, 2016, Father filed a number of motions, including a (1) Motion to Show Cause-Decree, (2) Motion for Contempt of Decree/Order, (3) Motion to Reallocate Parental Rights and Responsibilities, (4) Motion to Modify Parenting Provision – Communication, (5) Motion to Modify Parenting Provision – Transportation, (6) Motion to Modify Parenting Time, (7) Motion to Establish Spousal Support Overpayment, and a (8) Motion to Modify Child Support.2 Within these motions, Father sought to have Mother held in contempt for failing to pay her share of an outstanding IRS debt оrdered by the decree of
{¶ 8} With respect to his motion to realloсate parental rights and responsibilities, Father sought “an order allocating the responsibility for the children‘s haircuts to Father.” Rather than seeking to terminate shared parenting, Father sought to modify certain terms of the shared parenting plan so that he would have additional parenting time with the children, would not be responsible for transportation at the commencement of Mother‘s parenting time, and would have the ability to communicate with his sons via telephone or through other media sources while they were in Mother‘s physical custody.
{¶ 9} On February 6, 2017, while Father‘s motions were pending, Mother filed a Notice of Intent to Relocate Outside of Butler County, indicating her intent to move with the children to Columbus, Ohio for a new job opportunity. Father opposed Mother‘s move.
{¶ 10} A hearing on Mother‘s anticipated move to Columbus and the November 18, 2016 motions filed by Father was held before a magistrate on April 7, 2017. At this time, Mother and Father were the only individuals to testify. The parties introduced, and the magistrate accepted into evidence, exhibits pertaining to the parties’ communications with one another, their respective tax documents and bank statements, Father‘s paystubs, a letter of employment for Mother, and receipts of daycare expenses.
{¶ 11} On June 15, 2017, the magistrate issued a Decision and Judgment in which it denied Father‘s motion to hold Mother in contempt with respect to the IRS debt, but granted the motion and found Mother in contempt for failing to reimburse Father for medical expenses related to the birth of K.O.S. The magistrate granted Father‘s request to modify
{¶ 12} The magistrate granted Father‘s rеquest that he be allocated the responsibility of the children‘s haircare and granted Father‘s request to modify the parenting plan to establish a set time for the parent without physical custody to telephone and have media contact with the children during the other parent‘s parenting time. The magistrate also granted Father‘s request to modify the shared parenting plan with respect to transportation of the children. The magistrate ordered that the parties “meet at a mid-way point to exchange the children for parenting time. If the parties cannot agree upon a half-way location, then each party shall provide the entire transportation at the beginning of their parenting time period so that Father would drive to Westerville to pick up [A.A.S.] and [K.O.S.] at the beginning of his parenting time/conclusion of Mother‘s parenting time and Mother would drive to Fairfield to pick up the children at the conclusion of Father‘s parenting time/beginning оf Mother‘s parenting time.” Finally, the magistrate granted a modification of the parties’ parenting-time schedule, stating:
The court has considered the change in the distance involved and Father‘s work schedule and finds the following parenting schedule is in the best interest for [A.A.S.] and [K.O.S.] and recommends this schedule until [A.A.S.] starts Kindergarten:
Father shall have parenting time with the children on alternating weeks from 5:00 PM if he is picking them up from Mother in Westerville/Columbus (or at 6:30 PM if meeting at an agreed upon halfway location) on Wednesday and have them until Sunday at 5:00 PM if Mother is picking up the children from Father in Fairfield/Butler County area (or at 6:30 PM if meeting at an agreed upon halfway location).
{¶ 13} Father filed a number of objections to the magistrate‘s decision, including an
[Father] shall have parenting time with the oldest child from Friday after school until Sunday at 8 pm one weekend per month. [Father] shall exercise his weekend when there is a three-day weekend in any month which includes a Monday, and shall have until Monday at 8 pm.
If either parent cannot take off of work for the full parenting time, they may exercise part of their parenting time and does not forfeit their time.
Additionally, [Father] may have parenting time in Columbus with both children at any time with 24 hours’ notice to [Mother]. [Mother] shall sign any releases necessary for [Father] to pick up the children from daycare. [Father] shall be responsible for transporting the children for any prescheduled activities.
[Father] shall have every spring break with both children, with the hours consistent with DR610.1, absent agreement of the parties.
Under no circumstances shall the children miss school (kindergarten and beyond through high school) for parenting time.
During the summer, beginning the first weekend after the end of school until 8 pm on the Friday prior to the first day of school, [Father] shall have parenting time with the children from Monday
at 8 pm through the week until Friday at 5 pm. As an exception, the parties shall each have one full 10 day period with both children for summer vacation with 60 days’ notice to the other parent. [Father‘s] regular weekday schedule shall resume at 8 pm the Friday prior to the first day of school.
Parenting time shall be pursuant to prior orders as it regards religious holidays. Other than ordered above, holidays and days of special importance shall be pursuant to DR610.1.
{¶ 14} Father timely appealed the trial court‘s decision, raising the following as his sole assignment of error.
{¶ 15} THE TRIAL COURT ERRED IN ALLOCATING PARENTING RIGHTS.
{¶ 16} In his sole assignment of error, Father sets forth two challеnges to the parenting schedule ordered by the trial court. He first argues that the trial court erred in fashioning a parenting-time schedule for when A.A.S. begins school, as neither party requested a change in the schedule concerning the “future event of kindergarten attendance.” He also argues that the trial court erred in “sua sponte declaring that a child cannot miss school for parenting time, * * * [without making a] provision for Father‘s religious (Muslim) holidays, which are not provided in the cоnventional public school schedule.”
{¶ 17} We note that “in reviewing a domestic relations issue, an appellate court employs an abuse of discretion standard of review.” McNeal v. Mahon, 12th Dist. Clermont No. CA2015-11-094, 2016-Ohio-5373, ¶ 20. An abuse of discretion is more than an error of law or judgment; it implies that the trial court‘s decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). “When applying the abuse-of-discretion standard, a reviewing court must not substitute its judgment for that of the trial court.” In re E.L.C., 12th Dist. Butler No. CA2014-09-177, 2015-Ohio-2220, ¶ 16.
Parenting Time After Schooling Begins
{¶ 18} Father‘s motion to modify parenting time was considered simultaneously with
{¶ 19} When a parent seeks to modify the terms of the shared parenting plan to change the amount or schedule of parenting time, as opposed to seeking to modify the designation of residentiаl parent and legal custodian of the children, the best-interest standard in
[t]he court may modify the terms of the plan for shared parenting approved by the court and incorporated by it into the shared parenting decree upon its own motion at any time if the court determines that the modifications are in the best interest of the children or upon the request of one or both of the parents under the decree. Modifications under this division may be made at any time. The court shall not make modification to the plan under this division, unless the modification is in the best interest of the children.
(Emphasis added.)
{¶ 20} In determining the best interest of the children,
{¶ 21} In the present case, we find that the trial court did not abuse its discretion in modifying Father‘s parenting-time schedule. Contrary to Father‘s arguments, the parties had notice and were provided with an opportunity to be heard with respect to the parenting schedule and the best interests of the children. The record reflects that the court considered the best interest factors set forth in
{¶ 22} In modifying the parenting-time schedule, the court considered “all relevant factors,” including the parent‘s wishes, the children‘s relationships with their parents, and the children‘s ages and schooling needs. The court had before it Father‘s testimony that he was opposed to Mother moving to Columbus as it would interfere with his ability see his children, given that he resides in Fairfield, Ohio. Father stated that he and his children are “very close” and that they enjoy playing soccer, going to the park, and visiting Chuck E. Cheese‘s together. Father testified that he wanted increased parenting time with the children on weekdays, when he was not working. Father explained that he is a nurse and has a full-time job as a weekend manager for Hospice of Southwest Ohio, which requires him to work weekends, from 5:00 p.m. on Fridays until 8:00 a.m. on Mondays. Father also has a part-
{¶ 23} The court also had before it Mother‘s testimony that Mother wanted the children to move with her to Columbus and she wanted to establish a structured routine for the children. Mother stated she desired to have the children attend a daycare consistently, Monday through Friday. She also wanted to send the children to preschool – an activity that Father indicated he was not opposed to.3 Mother explained that her desire to move to Columbus was for employment. She testified that she had recently completed her master‘s degree and was offered a position with Defense Finance Accounting Service as an IT specialist in Columbus, Ohio. Mother testified her new job was “not something that‘s too far. There was some stuff like in Atlanta, other places, that I really had to consider and think twice about and I don‘t want the kids to be that far away from their dad. * * * [I]t‘s only two hours away. I‘ll try to, uh, figure out a way that we can make it work.”
{¶ 24} Given the evidence presented, we find no error in the trial court‘s decision to grant the motion to modify parenting time or in the court‘s fashioning of a parenting schedule
{¶ 25} Father‘s argument that the court‘s decision in some way invalidated the parties’ agreement in the shared parenting plan to “consult as to the appropriate school placement for the minor children when that times comes” is without merit. The trial court‘s order did not address or modify the provisions of the shared parenting plan governing school placement for the children.
{¶ 26} Accordingly, for the reasons expressed above, we find Father‘s arguments that the trial court erred in fashioning a parenting-time schedule for after A.A.S. begins schooling to be without merit.
Parenting Time Regarding Religious Holidays After Schooling Begins
{¶ 27} In his brief, Father also contends that the trial court‘s holding that “[u]nder no circumstances shall the children miss school (kindergarten and beyond through high school) for parenting time,” directly contradicts the court‘s prior order regarding parenting time during the holidays. Father argues that the trial court‘s order “sua sponte took * * * away” his ability to exercise parenting time with the children on Muslim holidays and denied him of his due process rights, right to religious freedom, and right to equal protection of the law. Mother, however, interprets the court‘s parenting schedule differently, and she contends in her brief that the court‘s judgment had no effect on its prior order that Father was to be given “parenting time with the children on major Muslim holidays and feasts he celebrates.” Mother maintains that “either parent‘s religious holiday practices take precedence over the ordinary
{¶ 28} At oral argument before this court, Mother‘s attorney reiterated that the prоvisions are not in conflict and stated that Mother does not object to the children missing school due to a religious holiday. Mother‘s attorney indicated her willingness to put on an agreed entry to this effect. However, no agreed entry was ever filed, and the issue raised by Father regarding his ability to exercise parenting time on Muslim holidays while school is in session remains pending before our court.4
{¶ 29} “[P]arents have a fundamental right to educate their children, including the right to communicate their mоral and religious values * * * [and] ‘direct the religious upbringing of their children.‘” Pater v. Pater, 63 Ohio St.3d 393, 397 (1992), quoting Emp. Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 881, fn. 1, 110 S.Ct. 1595 (1990). See also Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526 (1972); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571 (1925). “In a custody dispute, the parents’ rights must be balanced against the state‘s need to determine the best interests of the child.” Pater at 397. “[A] domestic relations court may consider the religious practices of the parents in order to protect the best interests of a child.” Id. at 395. However, a court may not restrict a parent‘s right to expose his or her child to religious beliefs, “unless the conflict between the parents’ religious beliеfs is affecting the child‘s general welfare.” Id. at paragraph two of the syllabus.
{¶ 30} In the present case, the trial court clearly recognized that both parents should
{¶ 31} Judgmеnt affirmed in part, reversed in part, and the matter remanded for further proceedings.
S. POWELL, P.J., and PIPER, J., concur.